Two prior articles summarized the principal avenues available to grandparents in Georgia for seeking custodial or visitation rights to a minor child and addressed the burdens of proof and evidence needed for a grandparent to obtain custody of a minor child or rights of visitation from a parent. In 2022, an amendment to the statute governing grandparents’ visitation rights was enacted. This article discusses the reasons for that amendment and the changes to grandparents’ visitation rights made under the amendment.

The Grandparent Visitation Rights Act of 2012 contained two substantive provisions with prerequisites for awarding child visitation to a grandparent or other petitioning family member. One provision – subsection (c) – applied to most situations where a grandparent or other designated family member sought visitation.(1) Under its terms, a court could award visitation upon a finding “by clear and convincing evidence that the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation.”(2) The second provision – subsection (d) – applied only to situations in which one of the parents of a minor child dies, is incapacitated, or is incarcerated.(3) It did not mandate a clear and convincing evidence standard. Instead, it gave broad discretion to a judge to award visitation in the best interests of a child, as follows:

Notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent's judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive.(4)

In a 2018 decision, the Supreme Court of Georgia struck down subsection (d) as unconstitutional. The Court held that the award of visitation rights to the parent of a deceased, incapacitated, or incarcerated parent suffered from a constitutional infirmity, in that “it permits a court to set aside the decisions of a fit parent about what is best for his or her child, without clear and convincing proof that those decisions have harmed or threaten to harm the child, and based simply on the conclusion of a judge that he knows better than the parent what is best for the child.”(5)

Now, four years after the Supreme Court’s ruling, new legislation has amended subsection (d) of the grandparent visitation statute in response to the Court’s decision. The amendment conforms the language of subsection (d) to that of subsection (c), so that the clear and convincing evidence standard and other prerequisites of subsection (c) also apply to a parent of a deceased, incapacitated, or incarcerated parent. The full text of the amended subsection (d) reads as follows:

(d)(1) Notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds by clear and convincing evidence that the health or welfare of the child would be harmed unless that such visitation is granted and if would be in the best interests of the child would be served by such visitation. The mere absence of an opportunity for a child to develop a relationship with a grandparent shall not be considered as harming the health or welfare of the child when there is no substantial preexisting relationship between the child and such grandparent. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive. In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result when, prior to the death, incapacitation, or incarceration of the child's parent:

(A) The minor child resided with the grandparent for six months or more; (B) The grandparent provided financial support for the basic needs of the child for at least one year; (C) There was an established pattern of regular visitation or child care by the grandparent with the child; or (D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.

The court shall make specific written findings of fact in support of its rulings. (2) While a custodial parent's decision regarding grandparent visitation shall be given deference by the court, the parent's decision shall not be conclusive when failure to provide grandparent contact would result in emotional harm to the child. A court may presume that a child who is denied any contact with his or her grandparent or who is not provided some minimal opportunity for contact with his or her grandparent when there is a preexisting relationship between the child and such grandparent may suffer emotional injury that is harmful to such child's health. Such presumption shall be a rebuttable presumption.(6)

Little if any concrete alterations in judges’ determinations of grandparent visitation rights should result from the 2022 amendment. In cases of deceased, incapacitated, or incarcerated parents, trial courts should continue to employ essentially the same analysis they have utilized for all grandparent visitation actions since subsection (d) of the 2012 Act was declared unconstitutional.

(1) O.C.G.A. 19-7-3(c). (2) Id. (3) O.C.G.A. 19-7-3(d) (2012). (4) Id. (5) Patten v. Ardis, 304 Ga. 140, 816 S.E.2d 633 (2018). (6) O.C.G.A. 19-7-3(d).